SB82: Bill Text

SB82,358,9 977.02 (3) (intro.) Promulgate rules regarding the determination of indigency of persons entitled to be represented by counsel, other than persons who are entitled to be represented by counsel under s. 48.23, 51.60 , or 55.105, or children who are entitled to be represented by counsel without a determination of indigency under s. 48.23 or 938.23, including the time period in which the determination must be made and the criteria to be used to determine indigency and partial indigency. The rules shall specify that, in determining indigency, the representative of the state public defender shall do all of the following:

SB82,1172 Section 1172. 977.02 (4r) of the statutes is amended to read:

SB82,358,14 977.02 (4r) Promulgate rules that establish procedures to provide the department of administration with any information concerning the collection of payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1).

SB82,1173 Section 1173. 977.03 (2m) of the statutes is amended to read:

SB82,358,18 977.03 (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1) from a prisoner's prison financial account.

SB82,1174 Section 1174. 977.05 (4) (gm) of the statutes is amended to read:

SB82,359,2 977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of persons who are entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or children who are entitled to be represented by counsel under s. 48.23 or 938.23, appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

SB82,1175 Section 1175. 977.05 (4) (h) of the statutes is amended to read:

SB82,359,10 977.05 (4) (h) Accept requests for legal services from children who are entitled to be represented by counsel under s. 48.23 or 938.23, from persons who are entitled to be represented by counsel under s. 48.23, 51.60 , or 55.105, or 938.23 and from indigent persons who are entitled to be represented by counsel under s. 967.06 971.013 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

SB82,1176 Section 1176. 977.05 (4) (j) of the statutes is amended to read:

SB82,359,18 977.05 (4) (j) Subject to sub. (6) (e) and (f), at the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy on behalf of the person before any court, if the state public defender determines the case should be pursued. The state public defender must pursue the case of any indigent person entitled to counsel under s. 971.17 (7) (b) 1. 975.63 (2) (a) or 980.03 (2) (a).

SB82,1177 Section 1177. 977.05 (6) (b) 2. of the statutes is amended to read:

SB82,359,22 977.05 (6) (b) 2. The judge or circuit court commissioner before whom the proceedings shall be held certifies to the state public defender that the person will not be incarcerated if he or she is found in contempt of court.

SB82,1178 Section 1178. 977.05 (6) (e) (intro.) and 2. of the statutes are amended to read:

SB82,360,3 977.05 (6) (e) (intro.) The state public defender may not provide legal services or assign counsel for a person who files a motion to modify sentence under s. 973.19 974.03 (1) (a), or for a person who appeals, under s. 973.19 (4) 974.03 (1) (d), the denial of a motion to modify sentence filed under s. 973.19 974.03 (1) (a), unless the person does one of the following:

SB82,360,5 2. Files the motion to modify sentence under s. 973.19 974.03 (1) (a) within 20 days after the sentence or order is entered.

SB82,1179 Section 1179. 977.06 (2) (a) of the statutes is amended to read:

SB82,360,16 977.06 (2) (a) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or a child who is entitled to be represented by counsel under s. 48.23 or 938.23, shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under rules promulgated under s. 977.02 (3) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.

SB82,1180 Section 1180. 977.06 (2) (am) of the statutes is amended to read:

SB82,360,24 977.06 (2) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or a child who is entitled to be represented by counsel under s. 48.23 or 938.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).

SB82,1181 Section 1181. 977.06 (3) (b) of the statutes is amended to read:

SB82,361,3 977.06 (3) (b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06 (1) (e), or 977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.

SB82,1182 Section 1182. 977.07 (1) (a) of the statutes is amended to read:

SB82,361,13 977.07 (1) (a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06. No determination of indigency is required for a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or for a child who is entitled to be represented by counsel under s. 48.23 or 938.23. The state public defender may also appoint counsel without a determination of indigency if the state public defender has reason to doubt the competency of a person who has been charged with a crime or who is pursuing postconviction relief in a criminal case.

SB82,1183 Section 1183. 977.07 (1) (c) of the statutes is amended to read:

SB82,362,2 977.07 (1) (c) For all referrals made under ss. 809.107, 809.30, 974.06 (3) (b) and 974.07 (11), except a referral of a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, a representative of the state public defender shall determine indigency. For referrals made under ss. 809.107, 809.30 and 974.06 (3) (b), except a referral of a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the person's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

SB82,1184 Section 1184. 977.07 (2m) of the statutes is amended to read:

SB82,362,14 977.07 (2m) If the person is found to be indigent in full or in part, the person shall be promptly informed of the state's right to payment or recoupment under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1), and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent in part, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. This subsection does not apply to persons who have paid under s. 977.075 (3m).

SB82,1185 Section 1185 . 977.076 (1) of the statutes is repealed.

SB82,1186 Section 1186. 977.076 (2) of the statutes is renumbered 977.076 and amended to read:

SB82,362,22 977.076 Collections. The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (2), 757.66, 938.275 (2) (a), or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection section.

SB82,1187 Section 1187. 977.08 (2) (intro.) of the statutes is amended to read:

SB82,363,2 977.08 (2) (intro.) All attorneys in a county shall be notified in writing by the state public defender that a set of lists is being prepared of attorneys willing to represent persons referred under s. 48.23 (4), 51.60, or 55.105, or children referred under s. 48.23 (4) or 938.23 (4) and indigent clients in the following:

SB82,1188 Section 1188. 978.045 (1r) (intro.) of the statutes is amended to read:

SB82,363,13 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the record stating the cause for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury proceedings or, in John Doe proceedings under s. 968.26 968.105, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

SB82,1189 Section 1189. 978.045 (1r) (i) of the statutes is amended to read:

SB82,363,17 978.045 (1r) (i) A judge determines that a complaint received under s. 968.26 968.105 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint.

SB82,1190 Section 1190. 978.05 (3) of the statutes is amended to read:

SB82,363,20 978.05 (3) John Doe proceedings. Participate in investigatory proceedings under s. 968.26 968.105.

SB82,1191 Section 1191. 978.05 (4) of the statutes is amended to read:

SB82,363,25 978.05 (4) Grand jury. When requested by a grand jury under s. 968.47 968.225, attend the grand jury for the purpose of examining witnesses in their presence; give the grand jury advice in any legal matter; draw bills of indictment; and issue subpoenas and other processes to compel the attendance of witnesses.

SB82,1192 Section 1192. 978.05 (6) (a) of the statutes is amended to read:

SB82,364,15 978.05 (6) (a) Institute, commence, or appear in all civil actions or special proceedings under and perform the duties set forth for the district attorney under ch. 980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 70.36, 103.50 (8), 103.92 (4), 109.09, 343.305 (9) (a), 453.08, 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a), 946.86, 946.87, 961.55 (5), 971.14 and 973.075 to 973.077 and subch. II of ch. 975, perform any duties in connection with court proceedings in a court assigned to exercise jurisdiction under chs. 48 and 938 as the judge may request and perform all appropriate duties and appear if the district attorney is designated in specific statutes, including matters within chs. 782, 976 and 979 and subch. I of ch. 968 and ss. 51.81 to 51.85. Nothing in this paragraph limits the authority of the county board to designate, under s. 48.09 (5), that the corporation counsel provide representation as specified in s. 48.09 (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the interests of the public under s. 48.14 or 938.14.

SB82,1193 Section 1193. 978.08 (1) (a) and (b) and (2) of the statutes are amended to read:

SB82,364,17 978.08 (1) (a) "Custody" has the meaning given in s. 968.205 968.645 (1) (a).

SB82,364,18 (b) "Discharge date" has the meaning given in s. 968.205 968.645 (1) (b).

SB82,365,2 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 subch. III of ch. 975 or s. 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

SB82,1194 Section 1194. 979.02 of the statutes is amended to read:

SB82,365,14 979.02 Autopsies. The coroner, medical examiner or district attorney may order the conducting of an autopsy upon the body of a dead person any place within the state in cases where an inquest might be had as provided in s. 979.04 968.015 notwithstanding the fact that no such inquest is ordered or conducted. The autopsy shall be conducted by a licensed physician who has specialized training in pathology. The district attorney may move the circuit court for the county in which the body is buried for an order disinterring the body for purposes of autopsy. The order shall be granted by the circuit court upon a reasonable showing that any of the criteria specified in s. 979.04 968.015 exists. This section does not prevent additional autopsies or examinations of the body if there are unanswered pathological questions concerning the death and the causes of death.

SB82,1195 Section 1195. 979.025 (1) of the statutes is amended to read:

SB82,365,24 979.025 (1) Inmate confined to an institution in this state. If an individual dies while he or she is in the legal custody of the department and confined to a correctional facility located in this state, the coroner or medical examiner of the county where the death occurred shall perform an autopsy on the deceased individual. If the coroner or medical examiner who performs the autopsy determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order an inquest under s. 979.04 968.015 (1), the coroner or medical examiner shall follow the procedures under s. 979.04 968.015 (2).

SB82,1196 Section 1196. 979.025 (2) of the statutes is amended to read:

SB82,366,11 979.025 (2) Inmate confined in an institution in another state. If an individual dies while he or she is in the legal custody of the department and confined to a correctional facility in another state under a contract under s. 301.07, 301.21, or 302.25, the department shall have an autopsy performed by an appropriate authority in the other state or by the coroner or medical examiner of the county in which the circuit court is located that sentenced the individual to the custody of the department. If the coroner or medical examiner who performs the autopsy in this state determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order an inquest under s. 979.04 968.015 (1), the coroner or medical examiner shall forward the results of the autopsy to the appropriate authority in the other state.

SB82,1197 Section 1197. 979.04 of the statutes is renumbered 968.015 and amended to read:

SB82,367,2 968.015 Inquests: when When inquests may be called. (1) If the district attorney has notice of the death of any person and there is reason to believe from the circumstances surrounding the death that the person was a victim of felony murder, first-degree or 2nd-degree intentional homicide, first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives, or fire, homicide by negligent operation of vehicle, homicide resulting from negligent control of a vicious animal or, homicide by intoxicated user use of a vehicle or firearm may have been committed, or that death may have been due to suicide or the person died under unexplained or suspicious circumstances, the district attorney may order that an inquest be conducted for the purpose of inquiring how the person died. The district attorney shall appear in any such inquest representing the state in presenting all evidence which may be relevant or material to the inquiry of the inquest. The inquest may be held in any county in this state in which venue would lie for the trial of any offense charged as the result of or involving the death.

SB82,367,4 (4) An inquest may only be ordered only by the district attorney acting under this subsection sub. (1) or by the circuit judge under sub. (2).

SB82,367,13 (2) If the coroner or medical examiner has knowledge of the death of any knows that a person has died in the manner or under the circumstances described under in sub. (1), he or she shall immediately notify the district attorney. The notification shall include information concerning the circumstances surrounding the death. The coroner or medical examiner may request the district attorney to order an inquest under sub. (1). If the district attorney refuses to order the inquest, a the coroner or medical examiner may petition the circuit court to order an inquest. The court may issue the order if it finds that the district attorney has abused his or her discretion in not ordering an inquest.

SB82,367,19 (3) Subsequent to receipt of After receiving notice of the death, the district attorney may request the coroner or medical examiner to conduct a preliminary investigation and report back to the district attorney. The district attorney may determine the scope of the preliminary investigation. This subsection does not limit or prevent any other investigation into the death by any law enforcement agency with jurisdiction over the investigation.

SB82,1198 Section 1198. 979.05 (title) of the statutes is repealed.

SB82,1199 Section 1199. 979.05 (1) of the statutes is renumbered 968.025 (1) and amended to read:

SB82,367,24 968.025 (1) By whom conducted. An inquest shall be conducted by a circuit A judge or a circuit court commissioner shall conduct each inquest.

SB82,1200 Section 1200. 979.05 (2) of the statutes is renumbered 968.025 (2) and amended to read:

SB82,368,5 968.025 (2) Before whom conducted. The inquest shall be conducted before a jury unless the district attorney, coroner, or medical examiner requests that the inquest be conducted before the judge or circuit court commissioner only.

SB82,368,16 (4) (a) If the inquest is to be conducted before a jury, the clerk shall select, in the manner provided in s. 756.06 (1), a sufficient number of names of prospective jurors shall be selected from the prospective juror list for the county in which the inquest is to be held by the clerk of circuit court in the manner provided in s. 756.06. The judge or circuit court commissioner conducting the inquest shall summon the prospective jurors to appear before the judge or circuit court commissioner at the time fixed in the summons. The summons may be served by mail, or by personal service if the judge, circuit court commissioner, or district attorney determines personal service to be appropriate. The summons shall be in the form used to summon petit jurors in the circuit courts of the county to ensure that the jury consists of 6 members.

SB82,368,19 (b) Any person who fails to appear when summoned as an inquest juror is subject to a forfeiture of shall forfeit not more than $40. The inquest jury shall consist of 6 jurors. If 6 jurors do not remain

SB82,368,25 (d) If, after all prospective jurors have been examined, fewer than 12 remain from the number originally summoned after establishment of qualifications, the judge or circuit court commissioner conducting the inquest may require shall direct the clerk of the circuit court to select to draw sufficient additional jurors' names. Those persons shall be summoned forthwith by the The sheriff of the county shall summon those persons immediately.

SB82,1201 Section 1201. 979.05 (3) of the statutes is renumbered 968.025 (4) (c) and amended to read:

SB82,369,16 968.025 (4) (c) The judge or circuit court commissioner shall examine on oath or affirmation each person who is called as a juror to discover whether the juror is related by blood, or marriage or adoption to the decedent, any member of the decedent's family, the district attorney, any other attorney appearing in the case, or any members of the office of the district attorney or of the office of any other attorney appearing in the case, has expressed or formed any opinion regarding the matters being inquired into in the inquest, or is aware of or has any bias or prejudice concerning the matters being inquired into in the inquest. If any prospective juror is found The court shall excuse any prospective juror whom it finds to be not indifferent or is found to have formed an opinion which that cannot be laid aside, that juror shall be excused. The judge or circuit commissioner may select one or more alternate jurors if the inquest is likely to be protracted. This subsection paragraph does not limit the right of the district attorney to supplement the judge's or circuit commissioner's examination of any prospective jurors as to qualifications.

SB82,1202 Section 1202. 979.05 (4) of the statutes is renumbered 968.025 (5) and amended to read:

SB82,369,21 968.025 (5) Oath. When 6 After the jurors have been selected, the judge or circuit court commissioner shall administer to them an oath or affirmation which shall be substantially in the following form:

SB82,370,2 You do solemnly swear (affirm) that you will diligently inquire and determine on behalf of this state when, and in what manner and by what means, the person known as .... .... who is now dead came to his or her death and that you will return a true verdict thereon according to your knowledge, according to the evidence presented, and according to the instructions given to you by the .... (judge) (circuit court commissioner).

SB82,1203 Section 1203. 979.05 (5), (6) and (7) of the statutes are renumbered 968.025 (6), (7) and (8) and amended to read:

SB82,370,13 968.025 (6) Role of district attorney. Prior to the submission of evidence to the jury, the judge or circuit court commissioner may instruct the jury on its duties and on the substantive law regarding the issues which may be inquired into before the jury The district attorney shall appear in each inquest, represent the state, and present all evidence that may be relevant or material to the inquiry of the inquest. The district attorney may, at any time during the course of the inquest, make statements to the jury relating to procedural or evidentiary matters he or she and the judge or circuit court commissioner deem appropriate. Section 972.12 applies to the conduct of the inquest jury.

SB82,370,16 (7) Secrecy and sequestration. The judge or circuit court commissioner conducting the inquest may order that proceedings be secret if the district attorney so requests or concurs and may sequester the inquest jury under s. 972.05.

SB82,370,18 (8) Juror compensation. Inquest jurors shall receive the same compensation as jurors under s. 756.25.

SB82,1204 Section 1204. 979.06 (title), (1), (2) and (5) of the statutes are repealed.

SB82,1205 Section 1205. 979.06 (3), (4) and (6) of the statutes are renumbered 968.035 (1), (2) and (3), and 968.035 (1) and (2), as renumbered, are amended to read:

SB82,371,2 968.035 (1) Any witness examined at an inquest may have counsel present during the examination of that witness. The counsel may consult with a client during the examination of that client. The counsel may not examine or cross-examine his or her client, cross-examine or call other witnesses, or argue before the judge or circuit court commissioner holding the inquest.

SB82,371,4 (2) The judge or circuit court commissioner shall administer an oath or affirmation to each witness which shall be substantially in the following form:

SB82,371,8 You do solemnly swear (affirm) that the evidence and testimony you give to this inquest concerning the death of the person known as .... .... shall be the truth, the whole truth and nothing but the truth and shall cause the testimony given by all witnesses to be reduced to writing or recorded.

SB82,1206 Section 1206. 979.07 of the statutes is repealed.

SB82,1207 Section 1207. 979.08 (title) of the statutes is renumbered 968.055 (title).

SB82,1208 Section 1208. 979.08 (1) of the statutes is renumbered 968.055 (1) and amended to read:

SB82,371,16 968.055 (1) When the Before submitting evidence is concluded and the testimony closed to the jury in an inquest, the judge or circuit court commissioner shall may instruct the jury on its duties and on the substantive law regarding the issues that may be inquired into before the jury. The

SB82,372,2 (2) After all of the evidence is presented, the district attorney shall prepare a written set of appropriate requested instructions and shall submit them to the judge or circuit court commissioner who, together with the district attorney, a written set of proposed instructions on the jury's duties and on the substantive law regarding the issues inquired into before the jury. The judge shall compile the final set of instructions which shall be given. The instructions shall include those instructions for criminal offenses for which the judge or circuit court commissioner believes a reasonable jury might return a verdict based upon a finding of probable cause. The judge shall use the final instructions to instruct the jury and shall provide the jury with one complete set of them.

SB82,1209 Section 1209. 979.08 (2) of the statutes is repealed.

SB82,1210 Section 1210. 979.08 (3) (intro.) and (4) of the statutes are consolidated, renumbered 968.055 (3) (intro.) and amended to read:

SB82,372,15 968.055 (3) (intro.) The jury shall retire to consider its verdict after hearing all of the testimony and evidence, making all necessary inquiries, and having been instructed in the law. The judge or circuit court commissioner shall provide the jury with one complete set of written instructions providing the substantive law to be applied to the issues to be decided. The verdict shall be in a form which permits the following findings: (4) The jury shall render its verdict shall be based upon a finding of probable cause, be unanimous, and be rendered in writing, signed by all of its members of the jury. The verdict shall set forth its the jury's findings from the evidence produced according to the instructions. The verdict shall be in a form that permits the following findings:

SB82,1211 Section 1211. 979.08 (3) (a) of the statutes is renumbered 968.055 (3) (b) and amended to read: